Client arrested at the scene of a mid afternoon accident near a construction site in a quiet residential neighbourhood. His car had inexplicably rear ended a parked construction vehicle. Damage was extensive and he may have been knocked out in the collision. A neighbour phoned 911, the police arrived and after detecting an alcoholic odour on the motorist breath, arrested him and took him to the station where he provided two breath samples which were both more than three times the legal limit. Client charged with impaired driving as well as operate over 80.
Case dismissed. Trial judge grants defence application to exclude breath readings based on a breach of the accused’s right to counsel. Judge accepts that insofar as the arresting officer made no effort to record the supposed waiver of counsel the court was thereby deprived of an opportunity to determine whether or not the police officer’s opinion was objectively justified. Once the excessive blood-alcohol readings were accordingly excluded from the equation, the trial judge agreed with the defence submission that the charge of impaired driving was not proven beyond a reasonable doubt since the concussive facts of the accident may well have contributed to the accused apparent state of “impairment” after the crash.